The predictability of abuses in accessing retained metadata…with an equally predictable damage to privacy

August 1, 2019 |

The newspaper the Australian has hardly been a standard bearer of privacy rights. Whenever there has been even a whiff of a suggestion that the Parliament would consider a statutory tort to give individuals a right to bring an action for an interference of their privacy the paper has gone into overdrive predicting the end of civilisation.  See my post in 2012, 2013 and again in 2013 and a less dismissive but no less hostile brief piece in 2018.    And there are others.  It has been a generally poorly argued, high octane almost physiological adverse reaction to the prospect that individuals having any enforceable privacy rights worth.

How a year and a bit has changed things.  John Durie now asks why the privacy commissioner isn’t testing her powers in dealing with terms of use which effectively force consumers to waive their privacy rights in Watchdogs need to test the strength of their privacy powers in Watchdogs need to test the strength of their privacy powers.  Now the Oz has fixed its sights on the metadata retention laws and raised alarm, amongst others, about abuse of section 280 of the Telecommunications Interception and Access Act, where now 87 agencies have accessed personal information with Jack the Insider running a I told you so piece The predictable failure of the loss of our internet privacy telling us that he saw all of this coming in 2015.  Of course he did.  The reality is that the Oz, like most media ineffectively reported on the issue, had weak commentary and generally accepted the arguments in favour of metadata retention.  There was reporting, such as in 2017 (with a relative voice in the wilderness piece from the much maligned David Leyonhjelm) and   2018, raising issues but generally it was supine.  The then, and current, opposition was even more ineffective though deliberately so given it saw any deviation from following the government on national security issues, of which this apparently is one, as being tantamount to electoral death.  And how well that worked out for Bill Shorten.

Now the picture is somewhat different, though it is debateable as to how effective the reporting or commentary is.  Zdnet reports that ACT Police accessed data 3,219 times without authority in 2015, more than the 116 unauthorised times admitted to earlier.  There has been good coverage of a Department of Home Affairs Annual report (on top of the earlier Ombudsman’s damning report) on the operation of the Telecommunications (Interception and Access( Act 1979 for 2017 -18 which  reveals that 87 agencies have sought access on more than 296,000 times. And now the reportage highlights the dangers in the loophole, more like chasm through which agencies happily drive through on the way to collect skads of metadata. The Minister’s reported defences of the checks and balances to protect data from misuse was vague and confined to generalities.  But while it might be uncomfortable for the Minister to try to explain everything is fine when it is not it is another thing to reform.  That is clearly not what the government wants to do and without the numbers, things will remain the same.

Could it be that the sudden awareness of the importance of privacy and the dangers of the misuse, albeit legal under section 280, of the metadata retention legislation is tied to the raids by the AFP on ABC and News Corporation journalists where part of the actions was collecting metadata.  The penny has dropped. Now the Human Rights Commissioner pushes for a wind back of the metadata laws.  It is all rather late.

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